1. According to the relevant regulations, the law enforcement department is the main law enforcement department for intellectual property protection. The German Customs is responsible for “inspecting and detaining at the port†(Grenzbeschlagnahme, hereinafter referred to as “detention and seizureâ€) for allegedly infringing import and export commodities. Note: The seizure referred to here is a special measure taken by the Customs in the process of customs clearance, which means that the suspension of customs clearance and (temporary) suspension of domination rights cannot be confused with the confiscation provided by the Criminal Law.
Customs at all levels in Germany are responsible for the seizure of different levels and different contents according to the division of labor. The German customs system consists of high, medium and low-level units. The Federal Ministry of Finance is the highest authority of the German Customs (the third division of the Ministry is in charge of customs affairs), and eight senior financial management committees (Oberfinanzdirektion) such as Hamburg and Keling Nuremberg are middle-level institutions, and the headquarters of the General Administration of Customs (Hauptzollämter) throughout the country are the grassroots. mechanism.
In February 1995, in order to further coordinate the national IPR protection work in the industrial and commercial fields and strengthen law enforcement, the Zentralstelle Gewerblicher Rechtschutz (ZGR) was established under the Nuremberg Senior Financial Management Committee. The main task of the center is to coordinate the customs system's seizure of suspected infringing import and export commodities in the territory, prevent counterfeit goods mainly from foreign countries from entering the retail sector, and provide legal protection for the business community.
Second, the essence of law enforcement content infringement of intellectual property rights is to illegally plunder others through years of hard work and invest a lot of financial resources in the research and development of product technology, and use the brand's popularity to confuse consumers in terms of the true source and quality of goods. .
The allegedly infringing import and export goods seized by the German Customs are mainly divided into two types: trademark infringement and product infringement. Trademark infringement refers to the illegal use of the graphic, product name, trademark, and business mark used by the trademark owner to mark the goods in circulation. Product infringement refers to the illegal copying and reproduction of a legitimate manufacturer's right to invent, design and process rights.
Third, the basis for law enforcement
On July 1, 1990, Germany enacted the Law on Strengthening the Protection of Intellectual Property Rights and Anti-Product Infringement (Produktpirateriegesetz, PrPG). The implementation of this law provides a legal basis for comprehensively strengthening anti-product infringement work and creates preconditions. The reason for enacting this law is to improve and improve the legal provisions on detectives and sanctions for infringements in the field of intellectual property. The purpose of enacting and implementing this law is to carry out the anti-infringement struggle more quickly and effectively through a number of measures.
In addition, the main legal basis for German Customs to seize the allegedly infringing import and export commodities is the Trademark Law (Markengesetz, MarkenG), the Patent Law (Patentgesetz, PatG), and the Physical Patent Law (Gebrauchsmustergesetz, GebrMG). ), the "Design Law" (Geschmacksmutergesetz, GeschmMG) and many other domestic laws.
IV. Law Enforcement Methods As mentioned above, in the field of intellectual property protection, the main task undertaken by German Customs in the fight against infringement is to seize and confiscate imported and exported commodities suspected of infringement. The seizure here is a broad definition, a comprehensive expression of the customs involvement in the anti-infringement work process and including a number of work content. The location of the seizure is not limited to border crossings, but extends to all locations where the customs own and implement regulatory and verification rights, such as the customs of the Mainland, duty-free ports and customs patrols.
Customs’ method of seizure depends on the implementation rules promulgated by the legislature. The rules are divided into two categories: the EU Rules and the German Rules. The EU Rules, the Regulations of the European Union on 1383/2003 on the actions and measures taken by the Customs for alleged infringement of goods, provide specific provisions on customs intervention in the case of alleged infringement of import and export commodities. . Contrary to the EU rules, the German rules are mainly aimed at obvious violations of goods that are about to enter the circulation. The essential difference between the EU rules and the German rules is that the EU rules give the customs greater flexibility in determining whether the goods are infringing, that is, the customs are only responsible for performing the detaining task in accordance with the “Business Law Protection Center†directive. In the case of infringement or not, the court rule is submitted, and the German rule is that as long as the evidence is clearly conclusive, the customs customs can determine the infringement of the goods and immediately seize the case. Whether in accordance with the EU rules or the German rules, the German customs enforcement method in the scope of intellectual property protection is unified and characterized as seizure.
1. Seizure according to EU rules. In order to initiate the customs detaining procedure in accordance with the EU rules, in principle, it is necessary to have an application filed by the legal owner of the property right in accordance with the prescribed procedures and the decision of the “Business Law Protection Centerâ€. If the goods are found to be infringing intellectual property rights and the "Business Law Protection Center" has made a decision on the goods according to the application of the property owner, the customs will prohibit the release of goods that have been accepted. In all other cases, the customs of the goods involved will be detained. Regardless of the measures taken, the legal procedures of the two are consistent.
After taking the ban or detainment measures, the customs is responsible for notifying the property owner and the commodity declaration or owner of the situation. At the same time, the customs can also inform the owner of the property of the quantity and type of goods seized. Upon receipt of the Customs notice, the property owner can apply for further information about the applicant, the shipper or recipient of the goods, and the place of production and origin of the goods. In addition, in order to facilitate the cooperation with law enforcement agencies in other relevant legal procedures and analysis of the case involved, the property owner can also apply to the Customs for the relevant samples and samples.
After the ban or detainment measures are taken, as a follow-up procedure, there are two procedures for entering the civil law and agreeing to simple destruction for the owner of the property. Upon receipt of a notice of ban or detention, the property owner must notify the customs of which procedure to choose within 10 working days. If it is necessary, Customs can extend the response period, but no more than 10 working days, and only 3 working days for perishable goods.
The above shows that in addition to the well-known judicial procedures, the EU rules also provide for simple destruction procedures. A prerequisite for entering this procedure is that the property owner agrees to destroy the allegedly infringing goods under customs supervision, subject to liability and expense. Prior to this, the property owner must first confirm that the goods seized by the customs infringe the rights of the customs, and at the same time produce evidence that the goods claimant, possessor or owner has requested to agree to destroy, and has obtained the consent of the destruction. Written confirmation. The commodity claimant, occupier or owner may also submit written consent to the destruction directly to the customs. If there is no express objection, it will be deemed to have agreed to destroy. If the parties object to the simple destruction, they must enter the judicial confirmation process.
With the promulgation and implementation of the EU rules, German Customs has also adjusted the intellectual property protection work in the industrial and commercial fields. The main changes are: compared with the past, the Customs is no longer involved in the case of the official adjudication body, but only the seizure task in the case of suspected infringement of the goods. There are only two possibilities for seizure, namely simple destruction or determination of infringement through judicial proceedings. Regarding the issue of consent by negotiation, the owner of the commodity property owner and the commodity applicant or the possessor, the EU rules do not provide for the agreement. For a specific batch of specific goods, the owner of the property right, if the application for withdrawal is cancelled, means that the application must be re-applied. If the Customs has passed the relevant data and relevant information to the property owner, the latter must bear the obligation to assist in verification as stipulated in the EU Rules. If the property owner fails to cooperate to cause the goods involved to be cleared, it may lead to the customs until the property owner has applied for the end of the validity period without taking other relevant measures. At the same time, other uncooperative behaviors of the property owner may cause the customs to refuse to agree to extend the application.
2. Seizure by German rules. The Customs usually seizes the allegedly infringing goods in accordance with the EU rules, but only adopts the German rules when the content of the case exceeds the scope of the EU rules. The German rules cover mainly parallel or grey imports (Parallelimporte /Grauimporte, which refers to non-counterfeit goods that have been imported from a third country without the consent of the owner of the property but have been agreed by the title owner to the same trademark), Commodity transactions within the EU, unregistered trademark protection, physical patents and semiconductor protection. German relevant protection laws, such as the Trademark Law, the Copyright Law, the Physical Patent Law or the Plant Species Protection Act (Sortenschutzgesetz, SortenschtzG), make specific provisions on customs seizures in the above-mentioned areas.
The application of the property owner and the corresponding security deposit (bank guarantee) are an indispensable prerequisite for the customs to seize the case in accordance with the German rules. The conditions precedent for the application are approximately the same as the conditions for the routine seizure of the application in accordance with the EU rules.
If the application has been approved, the Customs can issue a custody order in the event that the fact of the goods infringement is clearly correct. “As long as it is clear and correct, it can be seized†is the fundamental difference between the EU rules and the German rules. It also means that the infringement facts are established and no further investigation or appraisal is required. In the process of implementing this provision, it is not easy for the Customs to determine that it is clearly correct, and to a considerable extent depends on the assistance of the property owner. In connection with this, the owner of the property right must provide the customs with relevant materials to determine whether the infringement is made at the beginning of the application. Without such a warning, the customs cannot implement the seizure. Within two weeks after the implementation of the seizure, the parties may file a judicial review on the seizure measures taken by the Customs. After two weeks or after the judicial review process, the Customs will confiscate the goods involved and destroy them after the deadline.
3. Special seizure. As mentioned above, under normal circumstances, as a law enforcement agency, the Customs routinely seizes the allegedly infringing goods in accordance with the EU Rules or the German Rules based on the application of the property owner and the decision of the “Business Law Protection Centerâ€. However, in some cases, the Customs can still conduct special seizures in accordance with the relevant provisions of the EU Rules. Among them, the most common is the "ex officio".
“First-hand seizure†means that, in the process of customs clearance procedures or within the scope of customs supervision, if the relevant goods are found to have sufficient infringement suspects, the property owner has not filed an application for a total period of one year, although it has not been “ The Trade and Industry Legal Protection Center is approved in advance, and the Customs can still prohibit the release of the goods involved or detain them for three working days in order to inform the relevant property owners of the relevant circumstances. During this period, the property owner must submit an overall application for customs involvement or a single application for the case only. Normally, the staff of the “Business Law Protection Center†informs the property owner of the case and informs the specific requirements of the application by telephone.
After the application is filed, the case will be transferred to the regular verification procedures set out in the EU Rules. Within the stipulated time (10 or 20 working days), the owner of the property or the applicant must participate in and cooperate with the verification of the first phase of the case, such as commodity appraisal. In the second phase, the simple destruction procedure or civil action may be decided at the discretion. .
In addition to the “first-hand seizureâ€, the Customs’ custody of allegedly infringing goods transited, carried and mailed by the Customs is also subject to special deduction.
V. Seizure and Defence of Prosecutions Defence and Prosecution are also divided into two main ways: EU rules and German rules.
1. EU rules and regulations. If the alleged infringement is deemed to be inconsistent with the facts, the alleged infringer may lodge a protest against the seizure measures taken by the Customs through various legal channels to safeguard his legitimate rights and interests. In the process of seizure, because the customs ban and the detention of the goods involved are only temporary measures, the parties concerned may appeal to the customs for various forms of seizure measures in accordance with relevant laws and regulations. The appeal period is one month after the publication of the customs clearance measures. In the case of filing a complaint, the Customs is only responsible for reviewing the premise of the ban and detention. The content is: whether a valid application has been filed, whether the goods involved are within the scope of the application for the goods and whether the application for protection is involved.
As mentioned above, after the Customs has adopted the ban and detainment measures, according to the EU rules, the case is not a simple destruction procedure under the supervision of the Customs. The former, according to the requirements of the owner of the property right, the applicant, possessor or owner agrees to destroy the goods suspected of infringement. In the latter case, if the parties do not agree to destroy, the parties must clarify and raise another objection and then enter the judicial adjudication process.
2. German rules. Objection to customs seizures in accordance with German rules is the most commonly used legal means by the parties in practice. The time limit for filing an objection is 2 weeks after the notice of customs arrest is served. In connection with this, after receiving the notice of the objection from the customs, the property owner must immediately reply in writing to the customs whether to continue to maintain the application for customs intervention. If the original application is adhered to, the owner of the property must submit a court decision containing the goods in question or the content of the restrictions within 2 weeks (up to 4 weeks). The Customs will then take the necessary measures, such as continuing to preserve the allegedly infringing goods.
Because such court decisions usually involve temporary seizure orders that provide only temporary protection, the necessary measures taken by the customs will never be converted into direct confiscation and other uses. If the court decides to save, the goods involved will remain under customs supervision until the court makes a final judgment on the allegedly infringing goods. The storage costs incurred during this period are borne by the property owner. For this reason, the property owner should prompt the court to make a final judgment or conduct an out-of-office negotiation with the infringer in order to obtain approval from the court for the seizure and retract the objection according to the court's temporary seizure order.
6. The application for seizure is also as described above. Except for the “special seizureâ€, the application for seizure by the victim in accordance with the laws of the European Union and Germany is one of the prerequisites for the Customs to seize the matter in accordance with EU rules or German rules.
If the allegedly infringing goods involve registered trademarks, patents, copyrights or related protection laws, designs and additional protection certificates for pesticides and pesticides, plant protection, country of origin signs and geographical indications, domestic or foreign legal owners shall file in accordance with the relevant provisions of the EU Rules. Deduction application. If the allegedly infringing goods involve parallel import or gray import, EU internal commodity exchange, physical patent, microelectronic semiconductor products, unregistered trademark and company name, the application for seizure must be filed in accordance with the German rules. If you apply in accordance with the German rules, in addition to a certain amount of handling fees (minimum 30.68 euros, up to 306.78 euros), you must also provide a deposit of 10,000 to 25,000 euros through the bank. Whether applying in accordance with EU rules or German rules, applicants must provide detailed information in accordance with relevant regulations.
The application acceptance department is the “Business Law Protection Center†of the Nuremberg Senior Financial Management Committee in Munich. After receiving the application, the center will check the application premise and the application content, and make a decision to approve or reject the application within 30 working days. If the application is approved, the “Business Law Protection Center†will inform the national customs agency about the situation.
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